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[Federal Register Volume 77, Number 112 (Monday, June 11, 2012)]
[Rules and Regulations]
[Pages 34229-34232]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-14132]

[[Page 34229]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R10-RCRA-2011-0973; FRL-9684-6]

Idaho: Final Authorization of State Hazardous Waste Management 
Program; Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Idaho applied to EPA for final authorization of certain 
changes to its hazardous waste program under the Resource Conservation 
and Recovery Act, as amended (RCRA). On February 29, 2012, EPA 
published a proposed rule to authorize the changes and opened a public 
comment period under Docket ID No. EPA-R10-RCRA-2011-0973. The comment 
period closed on March 30, 2012. EPA received two comments on the 
proposed rule. EPA's responses are included in the section B of this 
final rule labeled ``What Were the Comments on EPA's Proposed Rule.'' 
EPA has decided that the revisions to the Idaho hazardous waste 
management program satisfy all the requirements necessary to qualify 
for final authorization and EPA is authorizing these revisions to 
Idaho's authorized hazardous waste management program in this final 
rule.

DATES: Final authorization for the revisions to the hazardous waste 
management program in Idaho shall be effective at 1 p.m. EST on July 
11, 2012.

ADDRESSES: Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the EPA Region 10 Library, 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101. The EPA Region 
10 Library is open from 9:00 a.m. to noon, and 1:00 to 4:00 p.m. Monday 
through Friday, excluding legal holidays. The EPA Region 10 Library 
telephone number is (206) 553-1289.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. EPA, Region 10, 
1200 Sixth Avenue, Suite 900, Mail Stop AWT-122, Seattle, Washington 
98101, email: kocourek.nina@epa.gov, phone number (206) 553-6502.

SUPPLEMENTARY INFORMATION:

A. Why are revisions to State programs necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize their changes. Changes 
to State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, States must change their programs because of changes to 
EPA's regulations codified in Title 40 of the Code of Federal 
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
    Idaho's hazardous waste management program received final 
authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990). 
Subsequently, EPA authorized revisions to the State's program effective 
June 5, 1992 (57 FR 11580, April 6, 1992), August 10, 1992 (57 FR 
24757, June 11, 1992), June 11, 1995 (60 FR 18549, April 12, 1995), 
January 19, 1999 (63 FR 56086, October 21, 1998), July 1, 2002 (67 FR 
44069, July 1, 2002), March 10, 2004 (69 FR 11322, March 10, 2004), 
July 22, 2005 (70 FR 42273, July 22, 2005), February 26, 2007 (72 FR 
8283, February 26, 2007), and December 23, 2008 (73 FR 78647, December 
23, 2008).
    This final rule addresses a program revision application that Idaho 
submitted to EPA in October 2011, in accordance with 40 CFR 271.21, 
seeking authorization of changes to the State program. On February 29, 
2012, EPA published a proposed (77 FR 12228) stating the Agency's 
intent to grant final authorization for revisions to Idaho's hazardous 
waste management program. The public comment period on this proposed 
rule ended on March 30, 2012.

B. What were the comments on EPA's proposed rule?

    EPA received two comments during the public comment period which 
ended March 30, 2012. One commenter questioned whether Idaho's failure 
to object to the U.S. Department of Energy (DOE)'s decision concerning 
replacement capability for the disposal of remote-handled low-level 
radioactive waste ((LLW) generated at the Idaho National Laboratory 
(INL) rendered the Idaho hazardous waste program ineligible for RCRA 
authorization. The commenter was particularly concerned that the DOE 
based its decision, a Finding of No Significant Impact (FONSI), for the 
Remote-Handled Low-Level Radioactive Waste Onsite Disposal (RHLLWOD) on 
an Environmental Assessment (EA) under the National Environmental 
Policy Act (NEPA) rather than on a more detailed Environmental Impact 
Statement (EIS). EPA does not agree with the commenter. The RHLLWOD 
will not be used for hazardous waste or mixed waste. Mixed waste is 
defined at 42 U.S.C. 1004(41) as waste that contains both hazardous 
waste and source, special nuclear, or by-product material subject to 
the Atomic Energy Act of 1954, 42 U.S.C. 2011 et seq. EPA's RCRA 
regulations at 40 CFR 261.4(a)(4) expressly exclude source, special 
nuclear or byproduct material as defined by the Atomic Energy Act of 
1954 from the definition of solid waste. A waste that is not a solid 
waste cannot be a hazardous waste subject to Subtitle C regulation 
under RCRA. Consequently, the RHLLWOD, which only handles source, 
special nuclear or byproduct material and does not handle solid waste, 
hazardous waste, or mixed waste, is not subject to RCRA or to the Idaho 
authorized hazardous waste program.
    The second commenter, on behalf of the Shoshone-Bannock Tribes, 
questioned whether Idaho, in implementing its authorized hazardous 
waste program, was appropriately regulating phosphate (mineral 
processing) plants within the state. In response to this commenter's 
concerns, EPA reviewed its own work in regulating mineral processing 
facilities and revisited Idaho's implementation of the authorized 
program under the State Review Framework. The State Review Framework is 
designed to ensure that EPA conducts oversight of state and EPA direct 
implementation of compliance and enforcement programs to ensure 
programs are carried out in a nationally consistent manner.
    Regulation of mineral processing wastes is an area in which 
national consistency has been challenging for EPA given the complexity 
of the processes and wastes in this sector. EPA began to place emphasis 
on the sector in the fall of 2000. In November 2000, EPA issued an 
enforcement alert to the regulated community giving notice that some 
mineral processing facilities might be failing to properly identify and 
manage hazardous waste regulated under RCRA. In 2003, EPA proposed the 
sector as an enforcement priority for fiscal years (FYs) 2005 through 
2007, (December 10, 2003, 68 FR 68893).
    EPA collaborated extensively with states in the development of a 
strategic plan establishing mineral processing as a strategic 
initiative and finalized the

[[Page 34230]]

national strategy to include mineral processing. Mineral processing was 
proposed as an enforcement and compliance priority on February 9, 2007, 
at 72 FR 6239, for FYs 2008 through 2010 (finalized as a priority on 
October 12, 2007, 72 FR 58084) and on January 4, 2010 (75 FR 146). On 
February 22, 2010, EPA finalized the proposal as a National Enforcement 
Initiative--Reducing Pollution from Mineral Processing Operations--for 
FYs 2011 through 2013.
    From 2004 to 2007, as EPA explained in an enforcement update 
(October 2007, FY08-FY10 Compliance and Enforcement National Priority: 
Mineral Processing and Mining), EPA completed numerous inspections of 
phosphoric acid and mineral processing facilities. Additional 
inspections took place from 2007 to 2010. EPA's enforcement work is 
ongoing and states, including Idaho, have actively supported the 
national initiative and EPA's work in moving the initiative forward.
    With respect to Idaho's authorized hazardous waste program, EPA's 
findings in the 2010 State Review Framework Final Report (SRF) show the 
state to have an active and responsive program. Data reviewed by EPA at 
the time of the SRF showed over 200 regulatory inspections conducted 
under the authorized program and penalties assessed totaling $172,600. 
EPA found that Idaho continued to place a high priority on compliance 
monitoring and enforcement at permitted treatment, storage and disposal 
facilities.
    As to the phosphate plants in Idaho about which the commenter 
expressed concerns, the State has conducted inspections on a near 
annual basis since the year 2000. On several occasions those 
inspections led to enforcement actions. The State has also been 
involved in EPA lead inspections at these facilities and has conducted 
compliance assistance visits as part of the state's effort to support 
the EPA national initiative. The implementation of the state's 
authorized program and the support of the EPA national initiative for 
mineral processing facilities indicate that Idaho has been compliant 
with the parameters of the authorized program for mineral processing 
facilities and has complied with the memorandum of agreement (MOA) 
between EPA and the state for the authorized program.
    EPA appreciates the concerns expressed by the commenter on behalf 
of the Shoshone-Bannock Tribes concerning Idaho's implementation of its 
authorized program in regulating phosphate mining and process plants in 
the state. While EPA does not agree with the conclusions drawn by the 
commenter, EPA takes the concerns raised seriously and construes those 
concerns as appropriate for addressing under the EPA national 
initiative for this sector. EPA does not think an assessment of Idaho's 
authorized program by the EPA Office of the Inspector General (OIG) is 
necessary at this time given the ongoing national initiative. EPA has 
an obligation to continue to evaluate the state authorized program for 
compliance with the regulations authorizing the state's program and 
will continue to carry out that obligation.

C. What decisions has EPA made in this final rule concerning 
authorization?

    EPA has made a final determination that Idaho's revisions to its 
authorized hazardous waste management program meet all of the statutory 
and regulatory requirements established by RCRA for authorization. 
Therefore, EPA is authorizing the revised State of Idaho hazardous 
waste management program for all delegable Federal hazardous waste 
regulations codified by Idaho as of July 1, 2010, as described in the 
Attorney General's Statement in the October 2011 revision authorization 
application, and as discussed in section E of this rule. Idaho's 
authorized program will be responsible for carrying out the aspects of 
the RCRA program described in its revised program application subject 
to the limitations of RCRA, including the Hazardous and Solid Waste 
Amendments of 1984 (HSWA). New Federal requirements and prohibitions 
imposed by Federal regulations that EPA promulgates under the authority 
of HSWA, and which are not less stringent than existing requirements, 
take effect in authorized States before the States are authorized for 
the requirements. Thus, EPA will implement those requirements and 
prohibitions in Idaho, including issuing permits, until the State is 
granted authorization to do so.

D. What will be the effect of this action?

    The effect of this action is that a facility in Idaho subject to 
RCRA will have to comply with the authorized State program requirements 
in lieu of the corresponding Federal requirements in order to comply 
with RCRA. Additionally, such persons will have to comply with any 
applicable Federal requirements, such as, for example, HSWA regulations 
issued by EPA for which the State has not received authorization, and 
RCRA requirements that are not supplanted by authorized State-issued 
requirements. Idaho continues to have enforcement responsibilities 
under its State hazardous waste management program for violations of 
this program, but EPA retains its authority under RCRA sections 3007, 
3008, 3013, and 7003, 42 U.S.C. 6927, 6928, 6934 and 6973, and any 
other applicable statutory and regulatory provisions, which includes, 
among others, the authority to:
     Conduct inspections; require monitoring, tests, analyses, 
or reports;
     Enforce RCRA requirements; suspend, terminate, modify or 
revoke permits; and
     Take enforcement actions regardless of whether the State 
has taken its own actions.

This final action approving these revisions will not impose additional 
requirements on the regulated community because the regulations for 
which Idaho will be authorized are already effective under State law 
and are not changed by the act of authorization.

E. What rules are we authorizing with this action?

    On October 25, 2011, Idaho submitted a program revision application 
requesting authorization for all delegable Federal hazardous waste 
regulations codified as of July 1, 2010, and these are the rules EPA 
authorizes through this final action. Idaho incorporated the delegable 
federal regulations by reference in the following provisions of the 
Idaho Administrative Procedures Act (IDAPA): 58.01.05.001 through 
58.01.05.010; 58.01.05.011 with the exception of the 4th sentence; 
58.01.05.012; 58.01.05.013; 58.01.05.015 through 58.01.05.018; 
58.01.05.356.01; and 58.01.05.998. This authorization revision includes 
the following federal rules for which Idaho is being authorized for the 
first time: Exclusion of Oil-Bearing Secondary Materials Processed in a 
Gasification System to Produce Synthesis Gas (73 FR 57, January 2, 
2008); NESHAP: Final Standards for Hazardous Waste Combustors (Phase I 
Final Replacement Standards and Phase II) Amendments (73 FR 18970, 
April 8, 2008); F019 Exemption for Wastewater Treatment Sludges from 
Auto Manufacturing Zinc Phosphating Processes (73 FR 31756, June 4, 
2008); Revisions to the Definition of Solid Waste (73 FR 64668, October 
30, 2008); Academic Laboratories Generator Standards, Alternative 
Standards for Hazardous Waste Determination and Accumulation (73 FR 
72912, December 1, 2008); Expansion of RCRA Comparable Fuel Exclusion 
(73 FR 77954, December 19, 2008); OECD Requirements; Hazardous Waste 
Technical Corrections and

[[Page 34231]]

Clarifications (75 FR 12989, March 18, 2010); and Withdrawal of the 
Emission Comparable Fuel Exclusion (75 FR 33712, June 15, 2010). The 
federal regulation for the Export of Shipments of Spent Lead-Acid 
Batteries (75 FR 1236, January 8, 2010), which the State adopted, is 
not being authorized as part of this action. EPA does not authorize 
states to administer the Federal government's export functions in any 
section of the RCRA hazardous waste regulations. See additional details 
about the Federal government's import and export functions in this 
final rule in section F labeled ``Where Are the Revised State Rules 
Different From the Federal Rules?''

F. Where are the revised State rules different from the Federal rules?

    Under RCRA 3009, EPA may not authorize State rules that are less 
stringent than the Federal program. Any State rules that are less 
stringent do not supplant the Federal regulations. State rules that are 
broader in scope than the Federal program requirements are not 
authorized. State rules that are equivalent to, and State rules that 
are more stringent than, the Federal program may be authorized, in 
which case they are enforceable by EPA. This section discusses certain 
rules where EPA has made the finding that the State program is more 
stringent and will be authorized and discusses certain portions of the 
Federal program that are not delegable to the State because of the 
Federal government's special role in foreign policy matters.
    EPA does not authorize States to administer Federal import and 
export functions in any section of the RCRA hazardous waste 
regulations. Even though States do not receive authorization to 
administer the Federal government's import and export functions, found 
in 40 CFR part 262, subparts E, F and H, State programs are still 
required to adopt the Federal import and export provisions to maintain 
their equivalency with the Federal program. The State amended its 
import and export rules to include the Federal rule on Organization for 
Economic Cooperation and Development (OECD) Requirements; Export 
Shipments of Spend Lead-Acid Batteries (75 FR 1236, January 8, 2010). 
The State's rule is found at IDAPA 58.01.05.006. EPA will continue to 
implement those requirements directly through the RCRA regulations.
    EPA has found that the State's Emergency Notification Requirements, 
(IDAPA 58.01.05.006.02), are more stringent than the Federal program. 
This is because the State's regulations require that the State 
Communications Center be contacted along with the Federal Center. EPA 
has found that the State's statutory requirement requiring hazardous 
waste generators and commercial hazardous waste disposal facilities to 
file annual hazardous waste generation reports, Idaho Code section 39-
4411(4) and 39-4411(5), to be more stringent than the Federal program. 
EPA will authorize and enforce these more stringent provisions.

G. Who handles permits after the authorization takes effect?

    Idaho will continue to issue permits for all the provisions for 
which it is authorized and administer the permits it issues. If EPA 
issued permits prior to authorizing Idaho for these revisions, these 
permits would continue in force until the effective date of the State's 
issuance or denial of a State hazardous waste permit, at which time EPA 
would modify the existing EPA permit to expire at an earlier date, 
terminate the existing EPA permit for cause, or allow the existing EPA 
permit to otherwise expire by its terms, except for those facilities 
located in Indian Country. EPA will not issue new permits or new 
portions of permits for provisions for which Idaho is authorized after 
the effective date of this authorization. EPA will continue to 
implement and issue permits for HSWA requirements for which Idaho is 
not yet authorized.

H. What is codification and is EPA codifying Idaho's hazardous waste 
program as authorized in this final rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the Code of Federal Regulations (CFR). This is 
done by referencing the authorized State rules in 40 CFR part 272. EPA 
is reserving the amendment of 40 CFR part 272, subpart N for 
codification of Idaho's program at a later date.

I. How does this action affect Indian country (18 U.S.C. 1151) in 
Idaho?

    Idaho is not authorized to carry out its hazardous waste program in 
Indian country, as defined in 18 U.S.C. 1151. Indian country includes:
    1. All lands within the exterior boundaries of Indian reservations 
within or abutting the State of Idaho;
    2. Any land held in trust by the U.S. for an Indian tribe; and
    3. Any other land, whether on or off an Indian reservation, that 
qualifies as Indian country.
    Therefore, this action has no effect on Indian country. EPA retains 
jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 1151 and 
will continue to implement and administer the RCRA program on these 
lands.

J. Statutory and Executive Order Reviews

    This final rule revises the State of Idaho's authorized hazardous 
waste management program pursuant to section 3006 of RCRA and imposes 
no requirements other than those currently imposed by State law. This 
final rule complies with applicable executive orders and statutory 
provisions as follows:

1. Executive Order 12866 and 13563

    This action authorizes revisions to the federally approved 
hazardous waste program in Idaho. This type of action is exempt from 
review under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
and Executive Order 13563 (76 FR 3821, January 21, 2011).

2. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This final rule does not 
establish or modify any information or recordkeeping requirements for 
the regulated community.

3. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., generally requires Federal agencies to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this final rule on small entities, small entity is defined as: (1) A 
small business, as codified in the Small Business Size Regulations at 
13 CFR part 121; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field. EPA has

[[Page 34232]]

determined that this action will not have a significant impact on small 
entities because the final rule will only have the effect of 
authorizing pre-existing requirements under State law and imposes no 
additional requirements beyond those imposed by State law. After 
considering the economic impacts of this action, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

4. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or tribal governments or the private sector. Therefore, this action is 
not subject to the requirements of sections 202 or 205 of the UMRA. 
This action is also not subject to the requirements of section 203 of 
the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small government entities.

5. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This final rule authorizes pre-
existing State rules. Thus, Executive Order 13132 does not apply to 
this action. In the spirit of Executive Order 13132, and consistent 
with EPA policy to promote communications between EPA and State and 
local governments, EPA specifically solicited comment on the proposed 
action from State and local officials but did not receive any comments 
from State or local officials.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive order 13175, because EPA retains its authority over Indian 
Country and does not authorize the state to implement its authorized 
program in Indian Country within the state's boundaries. Thus, EPA has 
determined that Executive Order 13175 does not apply to this final 
rule. EPA specifically solicited comment on the proposed rule from 
tribal officials and received one comment on behalf of the Shoshone-
Bannock Tribes. That comment is discussed in section B of this 
preamble.

7. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to EO 13045 because it approves a State program 
and is authorizing pre-existing State rules.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a ``significant regulatory action'' as 
defined under Executive Order 12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through the OMB, explanations when the Agency decides not to 
use available and applicable voluntary consensus standards. This action 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this action will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action authorizes pre-existing State rules which are 
equivalent to, and no less stringent than existing federal 
requirements.

11. Congressional Review Act

    Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective July 11, 2012.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians--lands, Intergovernmental relations, 
Penalties, Reporting and recordkeeping requirements.

Authority

    This action is issued under the authority of sections 2002(a), 3006 
and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 
6912(a), 6926, 6974(b).

    Dated: May 31, 2012.
Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2012-14132 Filed 6-8-12; 8:45 am]
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